Jeff Sessions' Reason for Rebooting the Discriminatory War on Drugs Is Nonsensical

The Attorney General has reinstated an archaic, wrongheaded policy that will lead to horrifying results.

Late Thursday night, Attorney General Jeff Sessions, a man who looks like the type to spend a housewarming party happily talking your ear off about the "War of Northern Aggression" as you frantically look around for a reason to extricate yourself from the conversation, quietly ordered Department of Justice prosecutors to resume the dated practice of filing the most serious provable charges and pursuing the harshest possible sentences against federal criminal defendants. This directive rolls back Obama-era policies that took aim at the onerous sentences often imposed on nonviolent drug offenders, and it will have an immediate and disproportionate impact on people of color. It is a gratuitously cruel move that lacks any empirical justification, and the meager rationale that Sessions offers in support of it is, to be frank, a breathtakingly disingenuous crock.

First, it is a core principle that prosecutors should charge and
pursue the most serious, readily provable offense.

Stop right there: That is not a "core principle" of law. That language comes from a 2003 memo issued by then-Attorney General John Ashcroft, who sought to constrain prosecutorial discretion and discourage the resolution of criminal cases via plea agreement, driven by his belief that the plea bargaining process allowed too many bad guys to get off easy. Sessions might share Ashcroft's ideology and be eager to reinstitute it as official DOJ policy, but asserting that this opinion is grounded in some unassailable legal principle is dishonest.

This policy affirms our responsibility to enforce the law, is moral
and just, and produces consistency.

Ashcroft's directive that prosecutors go for broke every time initiated a devastating chain reaction. Defendants, suddenly staring down years of jail time for relatively minor crimes, became less willing to plead guilty, figuring they might as well try and beat the charge altogether. The government spent its valuable time taking even nonviolent drug offenders to trial, when it could have avoided that trouble by offering a marginally more lenient plea bargain. And once convicted, individuals spent lengthier periods of time in federal custody at taxpayer expense. If your administration is obsessed with the idea of running the government with businesslike efficiency, Sessions' order is a very bad way of going about it.

Prosecutors must disclose to the sentencing court all facts that
impact the sentencing guidelines or mandatory minimum sentences, and
should in all cases seek a reasonable sentence under the factors in 18
U.S.C. § 3553.

The most consequential effect of Ashcroft's order, though, was the expanded imposition of mandatory minimum sentences. Federal law often required that judges sentence these defendants, who were suddenly being convicted of more serious charges, to certain prescribed minimum prison terms. The Federal Sentencing Guidelines provide ranges of appropriate sentence lengths and allow for some "adjustments" based the facts of the case—for example, a sentence can be adjusted up if the crime resulted in a death, or down if the defendant acted under duress.

Still, the upshot is that under Ashcroft's policy, disproportionate numbers of people of color received harsher sentences than their white counterparts for the most dubious of reasons. The Guidelines famously imposed the same mandatory minimum sentence for possession of five grams of crack cocaine, which is disproportionately used in communities of color, as they did for five hundred grams of powder cocaine, which is not. (This ratio was reduced to 18-to-1 in 2010, which is a little better, I guess.) Then-Attorney General Eric Holder hoped to end discriminatory practices like this one when he directed prosecutors to avoid filing charges against nonviolent drug offenders that would trigger mandatory minimums, provided the defendant had no ties to gangs and didn't sell to minors. Jeff Sessions effectively undid that on Thursday night.

The Attorney General's memo allows that there "will be circumstances in which good judgment would lead a prosecutor to conclude that a strict application of the above charging policy is not warranted," and apparently permits exceptions if a prosecutor requests and obtains supervisory approval. But the thrust of his directive is what matters: As Department of Justice attorneys grimly predicted when he was nominated, unyieldingly aggressive prosecutions and harsh mandatory minimums will be the rule, not the exception, under his leadership.

Sessions' gleeful resumption of the Bush-era war on drugs is objectively bad policy in every way. It will result in more people of color going to jail for longer periods of time, without any coherent justification for the disparity. It will exacerbate the incarceration epidemic in a country that already has 25 percent of the world's prisoners and only 5 percent of the world's population. It will cost the American taxpayer billions of dollars. It will be a drag on the Department of Justice's time and resources, preventing them from focusing their attention on genuinely dangerous and violent criminals. And the reason all this is happening is because Jeff Sessions clings to a morally and intellectually bankrupt conception of "justice," and he is either unwilling or unable to conceive of anything different.

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